On April 14, 2016 Parliament introduced Bill C-14 to amend the Criminal Code and related statutes in response to the Supreme Court of Canada’s Carter ruling on medical assistance in dying.

The bill removes criminal liability for assisting a person to end her or his life if carried out in compliance with the new s. 241.1.

The bill first defines “medical assistance in dying” as the administering by a medical practitioner or nurse practitioner of a substance to a person, at their request, that causes their death, or the prescription or provision of such substance to be self-administered.

In order to be eligible to receive medical assistance in dying, a person must:

be 18 years of age and capable of making decisions with respect to their health;

have a grievous and irremediable medical condition;

have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and

give informed consent to receive medical assistance in dying.

Clearly the most debated portion of the bill will be defining what constitutes a “grievous and irremediable medical condition”. The government has defined it in the bill as requiring all of the following:

a serious and incurable illness, disease or disability;

an advanced state of irreversible decline in capability;

enduring physical or psychological suffering that is intolerable to the person and cannot be relieved under conditions that they consider acceptable; and

natural death being reasonably foreseeable, taking into account all medical circumstances, without a prognosis necessarily having been made as to the specific length of time that a person has remaining.

The requirement of “an advanced state of irreversible decline in capability” and “natural death being reasonably foreseeable” have been viewed as overly restrictive by some, but are largely approved of by the medical community.

Safeguards are included in the bill, requiring that before a medical practitioner or nurse practitioner provides a person with medical assistance in dying, they must:

be of the opinion that the person meets all of the eligibility criteria above and obtain a written opinion to that effect from another, independent medical practitioner or nurse practitioner;

ensure that the person’s request for medical assistance in dying was made in writing, signed and witnessed after the person was informed that their natural death has become reasonably foreseeable;

ensure that the person has been informed that they may, at any time and in any manner, withdraw their request;

ensure that there are at least 15 clear days between the day on which the request is signed and the day on which the medical assistance in dying is administered, unless a shorter period is deemed appropriate in the circumstances;

immediately before providing the medical assistance in dying, give the person an opportunity to withdraw their request and ensure that the person gives express consent to receive medical assistance in dying.

The bill extends protection to pharmacists who prescribe substances and to others who assist the medical practitioner or nurse practitioner is administering assistance in dying. A criminal offence is established for failing to follow the safeguards, with potential jail sentences of not more than 5 years.

No manner of providing medical assistance in dying is set out. The bill only requires that assistance be provided with reasonable knowledge, care and skill and in accordance with any applicable provincial laws, rules and standards. Indeed, as health care is within provincial rather than federal jurisdiction, it will be up to the provinces to implement and oversee the practice of delivering medical assistance in dying.

Much debated before the bill was introduced were issues such as the eligibility of minors, mental illness and advance consent. Minors are clearly not eligible and will be the subject of further study. As for mental illness, it is not specifically deemed ineligible and indeed the definition of a grievous and irremediable medical condition illness references psychological suffering. However, the issue of mental illness will undoubtedly be problematic as mental illness may affect the ability of a person to give informed consent. Connected to this issue is the matter of advance consent. What happens if a person has a serious and incurable illness, disease or disability but is not yet in an advanced state of irreversible decline in capability? If they are suffering from a progressive cognitive disease, by the time their disease and suffering has advanced, they may no longer be capable of giving informed consent to treatment. This bill would not allow that person to give consent to medical assistance in dying before their cognitive abilities decline.

The government has taken a cautious approach with this bill. Given what is really a short period of time to deal with such a large social issue, this was not unexpected. Once this bills passes, whether intact or with amendments, the debate will continue and there will undoubtedly be many calls for amendment, both for more restrictive and for more liberal measures.

Justice Paul Perrell of the Ontario Superior Court of Justice today granted the application of an 81-year-old man, permitting him to proceed with a physician-assisted death. Known as A. B., the applicant has aggressive, advanced stage lymphoma.

The application is the first granted in Ontario since the Supreme Court of Canada’s decision in Carter. A. B. met the Superior Court of Justice’s test for an exemption under Carter. The test is a temporary measure put in place while the federal government deals with a legislative framework for physician-assisted death.

As discussed in an earlier post, in February 2015 the Supreme Court of Canada declared that portions of the Criminal Code that make it an offence to aid or abet a person to commit suicide are of no force or effect to the extent that they prohibit physician‑assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. The declaration of invalidity was suspended for 12 months, until February 6, 2016, to allow time for the government to determine what, if any, legislative approach was appropriate to deal with the Court’s decision – in other words, what guidelines should be put in place to allow for physician-assisted death.

In January of this year, the Federal government requested a six-month extension of the suspension. With the exception of Quebec, the Court granted a four-month extension but directed that during that time period, applications may be brought to provincial superior courts for exemptions to permit individual cases of physician-assisted death to proceed so as not to “unfairly prolong the suffering of those who meet the clear criteria we set out in Carter“.

On February 2, the Ontario Superior Court of Justice issued a practice advisory dealing with the procedure and evidentiary requirements for exemption applications in Ontario. Of note is the direction concerning evidence to be included, stating that the application “should” (read – “had better”) include affidavit evidence from (1) the applicant; (2) the attending physician; (3) a consulting psychiatrist; and (4) the physician proposed to assist death. The evidence to be provided must lead the Court to conclude that the applicant:

has a grievous irremediable medical condition (illness, disease, or disability) that causes suffering

as a result of his or her medical condition, the applicant is suffering enduring intolerable pain or distress that cannot be alleviated by any treatment acceptable to the applicant

has the mental capacity to make a clear, free, and informed decision about a physician assisted death

will be physically incapable of ending his or her life without a physician assisted death

consents without coercion, undue influence, or ambivalence to a physician assisted death

makes the request for authorization for a physician assisted death freely and voluntarily

Given the relatively short extension (by which time guidelines should be in place) and the evidence necessary to obtain the exemption, I would not expect there to be more than a handful of exemption applications.

This article in the Toronto Star is an interesting reflection of the sentiment of most Canadians on the subject of physician assisted dying. It also illustrates somewhat of a divide between ordinary citizens and those who would be tasked with complying with the law in making a dignified death possible – physicians.

If you live in Canada, you have heard of the Supreme Court of Canada’s decision in Carter v. Canada, released February 6, 2015. That decision declared void two sections of the Canadian Criminal Code to the extent that those sections prohibit “physician-assisted dying for competent adults who seek such assistance as a result of a grievous and irremediable medical condition that causes enduring and intolerable suffering”. So how did this come about?

Section 14 of the Criminal Code provides that “no person is entitled to consent to have death inflicted on him”. Any such consent does not absolve a person from criminal responsibility if they cause the death of that person. Section 241(b) makes it an offence to aid or abet a person to commit suicide. The combination of these two sections constitutes a ban on any person, including a physician, assisting another person in ending her life, regardless of the circumstances.

In Carter, the Supreme Court concluded that these sections, to the extent that they prohibit physician-assisted dying for competent persons suffering from grievous and irremediable medical conditions, are invalid because they deprive those persons of the right to life, liberty and security of the person guaranteed under section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”). The prohibition was found to be “overbroad” and not in accordance with the principles of fundamental justice. The Court found further that the Criminal Code provisions were not “saved” under section 1 of the Charter.

The argument before the Court was limited to “physician-assisted death”, which was defined as “the situation where a physician provides or administers medication that intentionally brings about the patient’s death, at the request of the patient”. The decision therefore does not extend beyond physician-assisted death.

One obstacle before the Court in dealing with this case was the fact that it had already heard an appeal dealing with physician-assisted death and these same provisions of the Criminal Code in the 1993 Rodriquezcase. At that time, the Court upheld the prohibition against physician-assisted death. What changed in the last two decades? It turns out quite a bit.

While one of the tenets of our legal system is the principle of stare decisis (lower courts being bound by decisions of higher courts), trial courts can reconsider rulings of higher courts in two situations (1) “where a new legal issue is raised” and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”. The Supreme Court found that both conditions were met in this case. While for lawyers the new legal issue is of interest, for most people (lawyers included) the real meat of the decision is in the fundamental shift in the physician-assisted death debate in the years since Rodriguez. In particular the Court noted that:

Notwithstanding Rodriguez, between 1991 and 2010 no less than six private members bills dealing with physician-assisted dying were debated by the House of Commons and its committees;

Recent reports have come down in favour of reform of the prohibition;

When Rodriguez was decided, there were no other jurisdictions that permitted assistance in dying. By 2010, eight jurisdictions permitted some form of assisted dying.

In other words, the Court found that Rodriguez was a product of its time. Times have changed.

In coming to its conclusion, the Supreme Court agreed with the trial judge’s assessment of most of the evidence. Of particular interest, the Court found that:

Section 7 rights encompass life, liberty and security of the person during the passage to death, recognizing that the sanctity of life is no longer seen to require that all human life be preserved “at all costs”;

The prohibition deprives some individuals of life by, in effect, forcing them to take their own lives prematurely, for fear that they will be incapable of doing so when they reach the point where suffering is intolerable;

An individual’s response to a grievous and irremediable medical condition is a matter critical to the person’s dignity and autonomy. While a competent person is entitled to give informed consent to the refusal of life sustaining treatment, the prohibition does not allow them use informed consent to request a physician’s assistance in dying. This interferes with the person’s ability to make decisions concerning their bodily integrity and medical care and exposes them to intolerable suffering, impinging the liberty and security of the person.

However, as the Court noted, the right to life, liberty and security of the person is not absolute. Those rights can be restricted provided the restriction does not violate the principals of fundamental justice. Here, the Court found that the prohibition did violate the principals of fundamental justice because it was overly broad. The Court found that the object of the law, to “protect vulnerable persons from being induced to commit suicide at a time of weakness”, impacted persons other that vulnerable persons. It also affects competent, informed people who have shown a persistent wish to end their own lives.

Having found a Charter right infringement, the Court had to determine whether the “saving provision” of section 1 of the Charter would allow the prohibition to stand. Section 1 will uphold a law that breaches section 7 of the Charter provided the law is (1) rationally connected to the law’s objective (2) minimally impairs the right in question and (3) there is proportionality between the deleterious and salutary effects of the law. The argument here came down to whether the law prohibiting physician-assisted death was a minimal impairment to the right to life, liberty and security of the person. Canada argued that the impairment was minimal because it was not always possible to determine which individuals are vulnerable and therefore the general prohibition was necessary to protect from error. It also put forward the “slippery slope” argument that allowing physician-assisted dying will lead to assisted dying in other circumstances.

The Court rejected these arguments and looked primarily to the standard of informed consent in Canada. With informed consent, individuals make decisions about their lives and potential death all the time. The Court found that physicians are able to determine whether a person is competent to assess alternatives and to make decisions regarding life and death. They are likewise able to determine whether such decisions are made voluntarily, free from coercion, undue influence and ambivalence. The Court agreed with the trial judge that a permissive regime of physician-assisted dying, with properly designed safeguards, is capable of protecting vulnerable people from abuse and error. The Court recognized that there are risks but stated that a “carefully designed and managed system is capable of adequately addressing them”. The Court also found that such a system addresses any concern of a “slippery slope”. The Court’s finding was bolstered by a lack of evidence of a heightened risk to people with disabilities in jurisdictions that allow for physician-assisted dying.

So what happens now? The Court suspended its declaration of invalidity of sections 14 and 241(b) for 12 months to permit Parliament to enact provisions so as to comply with this ruling. The decision itself does not set out circumstances whereby physician-assisted dying can be carried out. It will be up to lawmakers to implement a regime that allows for physician-assisted dying but protects the vulnerable. Already this has become a matter of great debate as the Supreme Court has provided no definition beyond a “grievous and irremediable medical condition that causes enduring and intolerable suffering”. Perhaps tellingly, the Court did not restrict itself to terminal conditions (although query what “irremediable” means in this context). It also left a great degree of subjectivity to the analysis as only the individual can determine what is “intolerable” to her or him. But how should intolerability be assessed by physicians? It will certainly be an interesting debate to follow over the next year.

A recent Ontario case is a good reminder of why preparing a will is best left to a competent lawyer.

In Budai v. Milton, the testator clearly wanted a no-nonsense approach to how his failing health and his estate were dealt with. He had a will prepared by a retired financial planner, who also happened to be named as executrix of the estate. The proposed executor was in all likelihood an excellent financial planner, but was found lacking in legal skills.

The will named one beneficiary, the applicant (defined in the will as a paid caregiver) and contained the following clauses:

6.1 Should my beneficiary, Kathy Budai challenge this Will or my choice of Executrix in any way then she will be removed from the Will and not inherit anything.

6.3 Should the estate have holdings due to my beneficiary not honouring my final wishes to pass away without any further efforts to prolong my life then the Executrix shall be in the control of distribution of the Estate. She may give away the funds in any way she sees fit. She may invest the balance of the Estate and use it for donations or any other purpose as long as the funds last. There are no restrictions to what she may do with the balance of the Estate.

With respect to clause 6.1, the applicant took the position that it should be struck out as contrary to public policy on the basis of the in terrorem doctrine. That doctrine can be invoked to strike a portion of a will where three criteria are satisfied, namely;

(a) the legacy must be of personal property or blended personal and real property;

(b) the condition must be either a restraint on marriage or one which forbids the donee to dispute the will; and

(c) the “threat” must be “idle.”

The court found that these criteria had been satisfied. A bald prohibition to challenging the will “in any way” offended the doctrine. Determining whether a threat is “idle” requires an examination of whether the threat is “imposed solely to prevent the donee from undertaking that which the condition forbids”. Bare forfeiture of a gift is therefore considered an idle threat.

While the court found paragraph 6.3 to be valid, despite several claims of uncertainty, it did note that the ability of the executor to disburse funds in any way she sees fit to be suspicious. The proposed executor was also the drafter of the will and had the ability under that clause to disburse the estate to herself if the applicant was disinherited. However, while the Court was willing to consider that suspicion may be a factor in determining whether a will as a whole is valid (an example would be suspicion contributing to a finding of undue influence), it was not satisfied that there was authority to hold that suspicious circumstances may be used to strike only a single provision in a will, leaving the remainder of the will valid.